2007 Regular Session
To: Business and Financial Institutions; Judiciary, Division B
By: Senator(s) Clarke
AN ACT TO AMEND SECTION 73-33-1, MISSISSIPPI CODE OF 1972, TO PROVIDE MINIMUM OWNERSHIP REQUIREMENTS FOR CPA FIRMS; TO AMEND SECTION 73-33-3, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT APPOINTMENTS TO THE BOARD OF PUBLIC ACCOUNTANCY SHALL BE MADE FROM THE FOUR MISSISSIPPI CONGRESSIONAL DISTRICTS; TO AMEND SECTIONS 73-33-11 AND 73-33-15, MISSISSIPPI CODE OF 1972, TO REVISE THE SUBPOENA POWER OF THE BOARD, TO AUTHORIZE THE BOARD TO IMPOSE A CIVIL PENALTY AGAINST PERSONS ADJUDGED TO HAVE VIOLATED CERTAIN PUBLIC ACCOUNTING REGULATORY LAWS, AND TO DELETE THE EXEMPTION THAT ALLOWS ATTORNEYS TO SIGN CERTAIN AUDIT REPORTS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 73-33-1, Mississippi Code of 1972, is amended as follows:
73-33-1. (1) Any person residing or having a place for the regular transaction of business in the State of Mississippi being of good moral character, and who shall have received from the State Board of Public Accountancy a license certifying his qualifications as a certified public accountant as hereinafter provided, shall be styled or known as a certified public accountant, and it shall be unlawful for any other person or persons to assume such title or use any letters, abbreviations or words to indicate that such person using same is a certified public accountant, unless, at the discretion of the board, such person has been granted use of the title of "certified public accountant retired" by the Mississippi State Board of Public Accountancy or has received a reciprocal certified public accountant license from the State Board of Public Accountancy.
(2) A certified public accountant practicing public accounting must be associated and registered with a certified public accountant firm, except a certified public accountant who is practicing as a sole proprietor not acting as a practice unit. * * *
(3) In order to obtain and maintain a firm permit, a certified public accountant firm shall meet the qualifications as set and determined by the board and shall furnish proof that:
(a) It is wholly owned by natural persons and not owned in whole or in part by business entities;
(b) A simple majority of the ownership of the firm in terms of financial interests and/or voting rights hold Mississippi certified public accountant licenses; and
(c) The certified public accountant members of the firm are registered and in good-standing with the board.
(4) In order to obtain and maintain a firm permit, a certified public accountant firm or office thereof which has its principal place of business located outside of the State of Mississippi and offers to perform or practices public accounting for a client or a potential client who is a Mississippi resident, has a principal place of business or is domiciled in Mississippi, shall furnish proof that:
(a) It is wholly owned by natural persons and not owned in whole or in part by business entities;
(b) A simple majority of the ownership of the firm in terms of financial interests and/or voting rights hold certified public accountant licenses from a statutorily authorized licensing jurisdiction; and
(c) The certified public accountant members of the firm offering to perform or performing work for Mississippi clients are registered and in good standing with the board.
(5) Any certified public accountant firm may include nonlicensee owners provided that:
(a) The firm designates a license of this state who is responsible for the proper registration of the firm and identifies that individual to the board;
(b) All nonlicensee owners are active individual participants in the certified public accountant firm or affiliated entities; and
(c) The firm complies with such other requirements as the board may impose by rule.
(6) No person or persons shall engage in the practice of public accounting as defined herein as a partnership, joint venture or professional corporation, sole proprietor acting as a practice unit, or other business organization allowed by law, unless and until each business organization or office thereof has registered with and been issued a firm permit by the State Board of Public Accountancy.
SECTION 2. Section 73-33-3, Mississippi Code of 1972, is amended as follows:
73-33-3. (1) There shall be a board of public accountancy, consisting of seven (7) members, who are qualified electors of this state; their duties, powers and qualifications are herein prescribed by this chapter. The members of the Mississippi State Board of Public Accountancy shall be appointed from holders of certificates issued under and by virtue of this chapter.
(2) (a) The present members of the Mississippi State Board of Public Accountancy shall continue to serve until January 1, 1984. After January 1, 1984, the appointments to the board shall be as hereinafter provided.
(b) The Governor shall appoint five (5) members from the congressional districts as they are presently constituted, as follows: The initial member from the First Congressional District shall be appointed for a term of one (1) year; the initial member from the Second Congressional District shall be for a term of two (2) years; the initial member from the Third Congressional District shall be appointed for a term of three (3) years; the initial member from the Fourth Congressional District shall be appointed for a term of four (4) years; the initial member from the Fifth Congressional District shall be appointed for a term of five (5) years. The members of the board as constituted on July 1, 2007, who are appointed from congressional districts and whose terms have not expired shall serve the balance of their terms, after which time the membership of the board shall be appointed as follows: There shall be appointed one (1) member of the board from each of the four (4) Mississippi congressional districts as they currently exist. In addition, the Governor shall appoint three (3) members from the state at large. * * * Terms for all members shall be for five (5) years.
(c) All terms shall begin on January 1 of the appropriate year. No member of the board shall hold any elected office. Appointments made to fill a vacancy of a term shall be made by the appointing officer within sixty (60) days after the vacancy occurs. Any person appointed to fill an unexpired term shall hold office only for and during the unexpired term of the member he succeeds.
(3) Each member of the board shall take the oath prescribed by Section 268 of the Mississippi Constitution. The board shall elect from among its membership, to serve one-year terms, a chairman who shall preside over meetings and a vice chairman who shall preside in the absence of the chairman or when the chairman shall be excused. A majority of the membership of the board shall constitute a quorum for the transaction of any business. Any board member who shall not attend three (3) consecutive regular meetings of the board for reasons other than illness of said member shall be subject to removal by a majority vote of the board members.
(4) The board shall hold regular meetings and special meetings as may be necessary for the purposes of conducting such business as may be required. The board shall adopt rules and regulations governing times and places for meetings, and governing the manner of conducting its business. All meetings of the board shall be open to the public.
SECTION 3. Section 73-33-11, Mississippi Code of 1972, is amended as follows:
73-33-11. (1) The Mississippi State Board of Public Accountancy may revoke, suspend, impose a civil penalty or take other appropriate action with respect to any license or permit issued pursuant to this chapter for any unprofessional conduct by the licensee or permit holder, or for other sufficient cause, provided written notice shall have been sent by certified mail (with the addressee's receipt required) to the holder thereof, twenty (20) days before any hearing thereon, stating the cause for such contemplated action and appointing a day and a place for a full hearing thereon by the board, provided further, no certificate or license be cancelled or revoked until a hearing shall have been given to the holder thereof according to law. But, after such hearing, the board may, in its discretion, suspend the certified public accountant from practice as a certified public accountant in this state. When payment of a civil penalty is assessed and levied by the board in accordance with this section, such civil penalty shall not exceed Five Thousand Dollars ($5,000.00) for each violation and shall be deposited into the special fund to the credit of the board.
(2) The members of the board are hereby empowered to sit as a trial board; to administer oaths (or affirmations); to summon any witness and to compel his attendance and/or his testimony, under oath (or affirmation) before the board or for purposes of deposition during any board authorized investigation; to compel the production * * * of any book, paper or document by the owner or custodian thereof to a hearing or for purposes of investigation; and/or to compel any officer to produce, during investigation or at the hearing a copy of any public record (not privileged from public inspection by law) in his official custody, certified to, by him. The board shall elect one (1) of its members to serve as clerk, to issue summons and other processes, and to certify copies of its records or, the board may delegate such duties to the executive director.
(3) The accused may appear in person and/or by counsel or, in the instance of a firm permit holder through its manager and/or counsel to defend such charges. If the accused does not appear or answer, judgment may be entered by default, provided the board finds that proper service was made on the accused.
(4) The minutes of the board shall be recorded in an appropriate minute book permanently maintained by the board at its office.
(5) In a proceeding conducted under this section by the board for disciplinary action against a licensee or permit holder, those reasonable costs that are expended by the board in the investigation and conduct of a proceeding for discipline, including, but not limited to, the cost of service of process, court reporters, expert witnesses, investigators and legal fees may be imposed by the board on the accused, the charging party or both.
(6) Such costs shall be paid to the board upon the expiration of the period allowed for appeal of such penalties under this section, or may be paid sooner if the guilty party elects. Money collected by the board under this section shall be deposited to the credit of the board's special fund in the State Treasury. When payment of a monetary penalty assessed by the board under this section is not paid when due, the board shall have the power to institute and maintain proceedings in its name for enforcement of payment in the Chancery Court of the First Judicial District of Hinds County, Mississippi, or in the Chancery Court of the county where the respondent resides.
(7) In case of a decision adverse to the accused, appeal shall be made within thirty (30) days from the day on which decision is made to the circuit court of the First Judicial District of Hinds County, Mississippi, or in the circuit court of the county in which the accused resides. In the case of a nonresident licensee, the appeal shall be made to the First Judicial District of Hinds County, Mississippi. The order of the board shall not take effect until the expiration of said thirty (30) days.
(8) In case of an appeal, bond for costs in the circuit court shall be given as in other cases; and the order of the board shall not take effect until such appeal has been finally disposed of by the court or courts.
(9) The board may, at any time, reinstate a license or permit if it finds that such reinstatement is justified.
(10) In addition to the reasons specified in the first paragraph of this section, the board shall be authorized to suspend the license of any licensee for being out of compliance with an order for support, as defined in Section 93-11-153. The procedure for suspension of a license for being out of compliance with an order for support, and the procedure for the reissuance or reinstatement of a license suspended for that purpose, and the payment of any fees for the reissuance or reinstatement of a license suspended for that purpose, shall be governed by Section 93-11-157 or 93-11-163, as the case may be. Actions taken by the board in suspending a license when required by Section 93-11-157 or 93-11-163 are not actions from which an appeal may be taken under this section. Any appeal of a license suspension that is required by Section 93-11-157 or 93-11-163 shall be taken in accordance with the appeal procedure specified in Section 93-11-157 or 93-11-163, as the case may be, rather than the procedure specified in this section. If there is any conflict between any provision of Section 93-11-157 or 93-11-163 and any provision of this chapter, the provisions of Section 93-11-157 or 93-11-163, as the case may be, shall control.
SECTION 4. Section 73-33-15, Mississippi Code of 1972, is amended as follows:
73-33-15. (1) It shall be unlawful for any person, except a registered public accountant, who is associated and registered with a firm permit holder and/or for any firm, except for a certified public accountant firm that holds a valid CPA firm permit to practice public accounting issued pursuant to this chapter to:
(a) Issue, sign or permit his name or firm name to be associated with any report, transmittal letter or other written communication issued as a result of an examination of financial statements or financial information which contains either an expression of opinion or other attestation as to the fairness, accuracy or reliability of such financial statements;
(b) Offer to perform, or perform, for the public, public accounting, tax consulting or other accounting-related services while holding himself out as a certified public accountant or as a firm of certified public accountants or certified public accountant firm; or
(c) Maintain an office or other facility for the transaction of business as a certified public accountant or certified public accountant firm.
(2) Any person or firm violating subsection (1) of this section shall be guilty of a misdemeanor, and may, upon conviction therefor, be punished by a criminal fine of not less than Five Hundred Dollars ($500.00) nor more than Five Thousand Dollars ($5,000.00), or by imprisonment in the county jail for not less than ten (10) days nor more than six (6) months, or by both such fine and imprisonment in the discretion of the court.
(3) In addition to any other penalty which may be applicable, the board may impose a civil penalty against any person adjudged by the board to be in violation of subsection (1) of this section. The civil penalty shall not exceed Five Thousand Dollars ($5,000.00) per violation and shall be deposited into the special fund to the credit of the board.
(4) The provisions of paragraph (a) of subsection (1) of this section shall not be construed to apply * * * to a person for making statements as to his own business; to an officer or salaried employee of a firm, partnership or corporation for making an internal audit, statement or tax return for the same; to a bookkeeper for making an internal audit, statement or tax return for his employer, whose books he regularly keeps for a salary; to a receiver, a trustee or fiduciary as to any statement or tax return with reference to the business or property entrusted to him as such; to any federal, state, county, district or municipal officer as to any audit, statement, or tax return made by him in the discharge of the duties of such office.
(5) Nothing in this section shall require a sole proprietor not acting as a practice unit to associate and register with a certified public accounting firm before engaging in the practice of public accounting.
SECTION 5. This act shall take effect and be in force from and after July 1, 2007.